December 08, 2011

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The U.S. Army discliplined 15 people as a result of an internal investigation into the decisions and failures that put Pvt. Bradley Manning in a position to download and leak thousands of classified military reports and diplomatic cables he allegedly provided to WikiLeaks, an Army spokesman said Wednesday.

At least one non-commissioned officer was reduced in rank for dereliction of duty, according a legal filing made public by Manning's defense over the weekend.

The discliplinary actions followed a report by Lt. Gen Robert Caslen about missed signs and inadequate responses to Manning's emotional problems and indications that he was not be stable enough to deploy to Iraq or to work with routine access to classified information, as his assignment as an intelligence analyst required.

"Appropriate action has been taken against 15 individuals identified in Lt. Gen. Caslen's report. In accordance with the Army's long-standing policy to protect the privacy of individuals below the general officer level, specific information concerning their misconduct is not releasable," Army spokesman George Wright told POLITICO's Charles Hoskinson Wednesday.

While the Army declined to provide immediate details of the discipline carried out as a result of the so-called 15-6 probe, some of the details are beginning to emerge as the military moves towards a court martial of Manning, who faces preliminary charges including aiding the enemy, disclosing closely-held national defense information without authority, and disobeying orders.

With a preliminary hearing for Manning set to get underway Dec. 16 at Ft. Meade, Md., Manning's civilian defense attorney, David Coombs, released a proposed witness list Saturday. The filing (posted here) indicates that one potential witness, whose name and rank were deleted from the copy made public, served as Manning's non-commissioned officer-in-charge and "was administratively reduced [in rank] by a board due to being derelict in his duties."

"Over the course of several months, he will testify that he drafted three memorandums detailing various behavioral health concerns of PFC Manning. Despite this, [redacted] will testify that he failed to notify anyone of these concerns that could have taken steps to take care of PFC Manning and ensure that he was getting the help that he needed. Instead, he will testify that he simply allowed PFC Manning to continue to work...as an intelligence analyst."

The defense filing could be a way of "telegraphing to the other side that it's going to be a nasty case, with a lot of dirty linen being laundered," military law expert Eugene Fidell of Yale University said. However, he said it's the misjudgements of others have no obvious bearing on Manning's guilt or innocence.

"It's a nice subject for an investigation, but the fact that other people permitted it to happen doesn't get him off the hook," Fidell said.

Fidell said he doubts the single non-commissioned officer was the only one to face serious discipline. "There maybe other kinds of actions taken against them, adminisitrative reprimands that aren’t a matter of record, but are nonetheless harmful in career terms," he said.

Some findings and recommendations from Caslen's report were described in news reports in January and February of this year from McClatchy News and the Washington Post.

Citing anonymous sources, McClatchy reported that a supervisor recommended that Manning not be deployed to Iraq because he shouted at higher-ranking soldiers and threw chairs at colleagues while stationed at Ft. Drum, N.Y. The McClatchy account reported that investigators were "considering whether they should recommend disciplinary action against at least three officers in Manning's chain of command."

"There were serious leadership failures within the unit chain of command and gross negligence in the supervision of Pfc. Manning in Iraq," the Post quoted an unnamed official familiar with the investigation as saying.

Shortly before his arrest in May 2010 for his alleged role in the leaks, Manning was demoted from specialist to private because he assaulted a fellow soldier. Coombs said in September 2010 that Manning's commanders were sufficiently concerned about his mental state to disable his weapon during a portion of his Iraq deployment. The filing released on Saturday refers at several points to recommendations to disable his rifle, but does not say definitively that it was in fact disabled.

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December 07, 2011

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It’s illegal in some places to eat peanuts in church. And in some states, it's illegal to sell beer on Sundays. But could it really be illegal to talk politics in the White House press briefing room?

Shocking as it may be to some hard-nosed Washington operatives, when top White House aides use an official forum like the briefing room or Air Force One to talk about candidates’ standing in the polls, Republican presidential hopeful Mitt Romney’s record or the latest campaign ad from the Democratic National Committee, they risk violating the Hatch Act, legal experts say.

“There are a number of comments from the podium from both parties that might cross the line” created by the 1939 law, said Scott Coffina, a White House ethics lawyer under President George W. Bush.

“It’s their obligation to make it clear whether they’re speaking in their official capacity as White House staff members, as assistants to the president, or not. If they are in their official capacity, they really can’t get into talking about campaign ads or events,” said Richard Painter, another Bush White House lawyer.

Senior White House aides and some other political appointees are exempt from a general prohibition on political activity in government offices. However, they’re still prohibited from using their “official authority or influence for the purpose of interfering with or affecting the result of an election.”

Painter, now a law professor at the University of Minnesota, said that means White House aides who are giving interviews or making statements about politics “cannot use their official titles … and you would not want to have [an official] logo behind you."

The legal restrictions don’t seem to have kept past White Houses from engaging in political talk at the briefing room podium or elsewhere. And the Obama White House also seems to be getting in on the act.

Over the past several weeks, White House Communications Director Dan Pfeiffer and press secretary Jay Carney have both waded into the political fray while fielding questions about 2012 campaign tactics.

“There are a lot of questions that Gov. Romney should have to answer about his constant change of positions on a whole host of issues, and if those questions aren’t being asked by you and your colleagues, Wolf, or some of his opponents, some of the president’s supporters will take up that task,” Pfeiffer said on CNN last week after host Wolf Blitzer asked why Obama backers were training so much fire on Romney.

When Blitzer noted that fact-checking outfit Politifact had rated as "mostly false" some claims in a Democratic National Committee video about Mitt Romney, Pfeiffer not only defended the video’s accuracy, but repeated some of its substantive claims about Romney being a flip-flopper on issues like abortion and health care reform.

“These aren’t, you know, someone else’s characterizations of Governor Romney’s words. They’re Governor Romney’s words, and I think it’s going to be, it’s really hard to explain how you can be for protecting Roe v. Wade and then repealing overturning Roe v. Wade. How you can be for the Massachusetts plan, the Romneycare plan as a model for Obamacare and a model foundation, then make repealing it your first act,” Pfeiffer said from the White House Press Briefing Room, with the familiar White House logo over his shoulder.

”Herman Cain has united some dormant enthusiasm of the Republican Party. He’s reached levels in the polls that no other candidate has reached, certainly not Governor Romney or Governor Perry,” Pfeiffer said.

During the exchange, taped at the White House, Pfeiffer also swung at Romney. “He’s taken positions on both sides of every issue for a long period of time,” the Obama aide said.

Asked by a reporter if Obama would be “taking on” Romney that day, Carney said no and then went on to take a couple of pops at the potential Obama opponent.

“I can say about that ad, I think the campaign has made comment,” Carney said. ” I mean, what — seriously? I mean, an ad in which they deliberately distort what the President said? I mean, it’s a rather remarkable way to start, and an unfortunate way to start. And I’m pleased to see numerous news organizations point out the blatant dishonesty in the ad.”

Painter said White House aides should only take shots at Romney and other candidates in unofficial settings. “Sitting on Air Force One, I wouldn’t do it,” Painter said.

“Senator Kerry has voted against supporting our troops in Iraq and Afghanistan,” McClellan said during one such exchange. “Senator Kerry is the one who has given his tacit approval to this kind of unregulated soft money activity by shadowy groups.”

Painter declined to comment on any advice he gave Bush appointees during his tenure, but said, “I don’t think one ought to claim it’s a unique problem to the Obama Administration. It’s just they need to be careful about this going forward.”

Officials at the federal agency that enforces the Hatch Act, the Office of Special Counsel, said they couldn’t issue public comment on specific statements without formally investigating them.

However, asked what advice the agency would give to a federal official who gets political questions during an official interview or briefing, OSC spokesman Adam Miles said: “The devil is in the details. These or similar issues arise for every administration during election years. OSC does its best to provide guidance on these complex matters, but the law is not clear. Given the lack of clarity, the best advice OSC can give to an official in this situation is to discuss the President’s policies and proposals.”

In an interview Wednesday, about a week after POLITICO inquired about the official policy on political statements from Obama’s aides, Carney reiterated almost verbatim the legal experts’ guidance.

“When we get questions from you or I get questions from the press in this briefing room about charges made by Republican presidential candidates, I respond to them, if they go to the president’s record and his policies,” Carney told MSNBC’s Chris Matthews on “Hardball.”

“We don’t spend a lot of time gaming out what outcome we would prefer in the Republican process because, as we’ve seen, it’s an unpredictable game, right? We don’t know who the nominee’s going to be. And as you’ve pointed out, we have one candidate who was nowhere three or four weeks ago who is top of the heap right now. Who knows who’s going to be top of the heap in three or four months,” Carney added.

Official guidance posted on the OSC website advises that federal employees “may not use their official authority or influence to interfere with or affect the result of an election [and] may not use their official titles or positions while engaged in political activity.”

Penalties for violating the Hatch Act, which is not a criminal statute, include suspension or dismissal from federal employment. The act’s restrictions do not apply to the president or vice president.

While the political comments by Obama aides seem to have ample precedent, during his first presidential bid, candidate Barack Obama expressed discomfort with the amount of politicking going on at or from the White House.

“This has been the most politicized White House in history and the American people have suffered as a result,” Obama told an audience in Manchester, N.H. on June 22, 2007. “The days of using the White House as another arm of the Republican National Committee are over.”

Asked about the recent comments by Pfeiffer and Carney, White House spokesman Eric Schultz pointed to the practices of past White Houses.

“Like every other White House press person in modern history, we do our best to answer the tough questions that are asked and defend the President’s policies, even in the heat of the political season, and especially when they are under attack or being distorted,” Schultz said.

Coffina agreed White House aides are entitled to respond to criticism of the president or his policies from political candidates or anyone else. “No matter what the accusation is, if you’re the president’s spokesman you’re entitled to defend against it,” said Coffina, now a partner at Montgomery, McCracken in Philadelphia.

Coffina said he wasn’t troubled by Carney’s criticism of Romney aboard Air Force One because it was so fleeting, but that Pfeiffer’s extended televised discussions of politics went too far.

“He really put on the campaign spokesman hat there for an extended defense of Romney’s attacks….He was really going after Romney with the White House seal behind his shoulder,” Coffina said.

Earlier this year, the White House closed its political office and moved several staffers to Chicago to join the president’s re-election bid.

Coffina said they’re the ones that should handle discussion of politics. “Having gone through those changes, they should carry those out and pass these questions to the campaign,” the lawyer said. “Is this a major foul? No, but it’s consistent with how they’re trying to operate these days with the White House being very much in campaign mode.”

UPDATE: This post has been updated with reference to the January OSC report and Coffina's comments thereon.

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December 06, 2011

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Lawyers for former Sen. John Edwards (D-N.C.) are defending their plan to call two former Federal Election Commission members as witnesses at Edwards's upcoming trial for conspiring to violate campaign finance laws in connection with more than $900,000 in payments two of his backers made to his mistress, Rielle Hunter.

Prosecutors have asked U.S. District Court Judge Catherine Eagles to bar former commissioners Scott Thomas and Robert Lenhard from testifying as defense experts on campaign finance law. They have said they would have advised Edwards that the payments at issue in the case would not be considered political donations under federal law. However, the government has argued that determining the law is the province of the trial judge and that the facts are to be found by the jury.

However, defense lawyers Abby Lowell and Jim Cooney contend in a court filing Monday (posted here) that presenting such experts is not only appropriate in cases involving highly technical legal fields, but that denying Edwards the right to do so would violate his fair trial rights.

The latest filing suggests strongly but does not say outright that Edwards will testify in his own defense at trial, if the case gets that far.

Lowell and Cooney write:

Mr. Edwards agrees with the government that an expert cannot assume the role of a mind reader and testify as to what a defendant actually was thinking at the time of the alleged offense, and an expert cannot assume the role of the judge and instruct the jury on what the law requires. But Mr. Edwards does not intend for the former FEC commissioners to assume either role. Rather, Mr. Edwards intends to use the former FEC commissioners testimony to buttress his claim of a good faith, innocent intent through expert testimony that establishes that Mr. Edwards' belief that his conduct did not violate the election laws was reasonable. That is something the law plainly permits, and numerous courts have found it reversible error to preclude a defendant from doing so.

Jury selection for Edwards's trial is set to get under way Jan. 30 in Greensboro, NC.

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December 05, 2011

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House Oversight and Government Reform Chairman Darrell Issa said Monday that he's broadening his probe of the gun-running investigation known as Operation Fast and Furious to cover new allegations that the Drug Enforcement Administration has been laundering large sums of money in efforts also targeted at Mexican drug cartels.

The New York Times reported Sunday that undercover agents with the DEA have deposited millions of dollars in bank accounts belonging to Mexican drug traffickers as part of investigations aimed at dismantling those networks.

Issa sent Attorney General Eric Holder a letter Monday, suggesting parallels between the Fast and Furious case, which involved "walking" guns to Mexican drug cartels, and the reported DEA tactics, which appear to have supplied money to such groups.

"We have been working collaboratively with the Mexican government to fight money laundering for years. As a result of this cooperation, we have seized illicit transnational criminal organization money all around the world through our partnership with law enforcement. However, we do not discuss the operational aspects of law enforcement activities.

"It ... appears as though these American agents, posing as smugglers, assisted Mexican drug cartels in their illicit and deadly drug trade," Issa wrote in his letter (posted here.) "These allegations, if true, raise further unsettling questions about a Department of Justice component engaging in a high-risk strategy with scant evidence of success."

"The existence of such a program again calls your leadership into question," Issa told Holder. "The managerial structure you have implemented lacks appropriate operational safeguards to prevent the implementation of such dangerous schemes."

Issa asked Holder to arrange a briefing about the DEA practices for his committee by Wednesday, a day before Holder is scheduled to testify to another House panel about Fast and Furious and other matters.

A DEA spokeswoman issued a statement Monday lauding the agency's work with the Mexican government, but not addressing the tactics described in the Times article.

"We have been working collaboratively with the Mexican government to fight money laundering for years. As a result of this cooperation, we have seized illicit transnational criminal organization money all around the world through our partnership with law enforcement. However, we do not discuss the operational aspects of law enforcement activities," the DEA spokeswoman, Dawn Dearden, said.

A Justice Department spokeswoman said the department is reviewing Issa's letter and "will respond."

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December 04, 2011

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An Army intelligence analyst charged with leaking a huge trove of diplomatic cables and military reports to WikiLeaks is demanding that President Barack Obama and Secretary of State Hillary Clinton testify as witnesses at a preliminary hearing set to begin next week.

A defense lawyer for Pfc. Bradley Manning made the request Friday deep in a 20-page list of defense witnesses for a so-called Article 32 hearing scheduled to start Dec. 16 at Fort Meade, Md. The hearing, akin to a probable cause hearing in the civilian justice system, is to consider whether Manning's case should be referred for a full-scale court martial.

Manning's civilian defense attorney, David Coombs, released the request for witnesses Saturday via a posting on his blog. The names of Obama and Clinton were deleted from the version Coombs posted on the internet (and here on our site). However, their identities are evident from the explanations of why their testimony would be relevant to the case.

"Under the Uniform Code of Military Justice (UCMJ), a superior officer in the chain of command is prohibited from saying or doing anything that could influence any decision by a subordinate in how to handle a military justice matter," the defense request says. Obama "made improper comments on 21 April 2011 when he decided to comment on PFC Manning and his case. On that date, he responded to questions regarding PFC Manning's alleged actions by concluding that 'We're a nation of laws. We don't let individuals make their own decisions about how the laws operate. He [PFC Manning] broke the law.'"

Coombs said he wants to question Obama about the "nature of his discussions with members of the military regarding this case and whether he has made any other statements that would either influence the prosecution of this case or PFC Manning's right to obtain a fair trial." Manning's defense also wants to ask Obama about the alleged lack of impact of WikiLeaks's disclosure of the leaked U.S. military reports on Afghanistan, as well as open government issues and the phenomenon of overclassification.

The request for Clinton's testimony doesn't allege any impropriety on her part, but seeks to have her confirm that the impact of the diplomatic cables disclosed by WikiLeaks, allegedly after being leaked by Manning, was minimal.

Clinton "will testify that she has raised the issue of the disclosure of diplomatic cables with foreign leaders 'in order to assure our colleagues that it will not in any way interfere with American diplomacy or our commitment to continuing important work that is ongoing.' [She] will also testify that she has not had any concerns expressed to her about whether any nation would not continue to work with the United States or would not continue to discuss important matters going forward due to the alleged leaks," the defense filing says. "As such, Secretary [Clinton] wiil testify that although the leaks were embarrassing for the administration, that she concurs with [redacted] opinion that they did not represent significant consequences to foreign policy."

Manning, who has been in custody for more than 18 months, faces preliminary charges ranging from disobeying an order to violating the Espionage Act to aiding the enemy. The latter charge can carry the death penalty but military prosecutors have indicated they do not intend to seek capital punishment in the case.

Bagdasarian conceded that he used an online bulletin board about finance to post the messages, saying "Re: Obama fk the niggar, he will have a 50 cal in the head soon” and “Shoot the nig."

After a bench trial, Bagdasarian was convicted of two felony counts of threatening a presidential candidate. However, the July appeals court opinion said the comments, while "repugnant," did not constitute a "true threat" to Obama. Judge Stephen Reinhardt, a Carter-appointed liberal stalwart, joined Chief Judge Alex Kozinski, a Reagan-appointed libertarian, in concluding that the federal law used to charge Bagdasarian does not make illegal “predictions or exhortations” to kill or injure a presidential candidate.

However, the government's plea to have an en banc,11-judge panel reinstate Bagdasarian's conviction seemed to get little traction at the appeals court. In its order Friday, the court indicated that only the judge who dissented from the July ruling, Kim Wardlaw, asked for the case to be reheard.

A Justice Department spokeswoman, Tracy Schmaler, had no immediate comment on whether the government will ask the Supreme Court to consider the case. "We'll review the ruling," she said in an e-mail to POLITICO.

The final decision will be in the hands of Solicitor General Donald Verrilli.

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December 03, 2011

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The furor over Operation Fast and Furious has already put a shadow over the political future of prominent Arizona Democrat and former U.S. Attorney Dennis Burke, as POLITICO reported back in August when he resigned the prosecutor's post under pressure.

That shadow grew significantly darker and longer on Friday with the release of internal Justice Department documents in which Burke excoriated the "Gun Lobby" (presumably, the National Rifle Association) as well as its "stooges," among whom he counted Sen. Chuck Grassley (R-Iowa).

“What is so offensive about this whole project is that Grassley’s staff, acting as willing stooges for the Gun Lobby, have attempted to distract from the incredible success in dismantling [southwest border] gun trafficking operations ... by not uttering one word of rightful praise and thanks to ATF — but instead lobbing this reckless despicable accusation that ATF is complicit in the murder of a fellow federal law enforcement officer,” Burke wrote in a Feb. 4 email to Weich and other top officials. “No commentary by Grassley on the lax laws, nor greedy gun shop owners, nor careless straw purchasers, and not boo about the evil gun traffickers for the Cartels. Just demonize ATF w/a strategically-timed repulsive letter emailed to the entire press world before we ever saw it.”

Burke — a politically connected and savvy former chief of staff to Janet Napolitano both when she was Arizona governor and in her current post as secretary of homeland security — has apologized to Grassley, who seems to have accepted.

However, in a state like Arizona — where even Democrats tend to take strong pro-gun and anti-gun control positions — railing against the influence of the "Gun Lobby," its "stooges," "lax laws," and "greedy gun shop owners" seems like political poison for Burke, barring a dramatic change in public opinion in that state on gun issues.

In a court filing Friday afternoon, Ortega-Hernandez's lawyers said there's no legal basis for another exam because the suspect was already found competent by a doctor who examined him.

"The Defendant was evaluated by Dr. Elisabeth Teegarden, the Court’s own independent expert, and found to be competent to stand trial in this matter. The Government, after reviewing Dr. Teegarden’s report, concedes that it does not dispute Dr. Teegarden’s conclusion that the Defendant is competent to stand trial. Nor does the Government allege — because there is no basis to do so — that there was any infirmity in Dr. Teegarden’s evaluation," defense lawyers Laura Quint and David Bos wrote.

"The Government does not, because it cannot, cite any legal authority that 'the nature of the charges pending against the defendant' is relevant" to whether a further examination of the defendant is required, Bos and Quint wrote, adding that the government request should be "summarily denied."

President Barack Obama was not at the White House on the night of Nov. 11 when someone apparently opened fire on the building from several blocks south, near Constitution Avenue. A car registered to Ortega-Hernandez was found abandoned about a half-mile from the scene of the shooting. Ortega-Hernandez was arrested in western Pennsylvania four days after the shooting.

At least one bullet — apparently from the incident — pierced a White House window, but was stopped by a second bulletproof panel, according to the Secret Service. Other rounds struck the south side of the White House, an FBI affidavit submitted in Ortega-Hernandez's case said.

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December 01, 2011

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The Senate on Thursday evening essentially blessed the indefinite detention of American citizens who join up with Al Qaeda.

By a 45-55 vote, senators rejected an amendment from Sen. Dianne Feinstein (D-Calif.) that would have excluded U.S. citizens from the detention authority created by the Authorization for the Use of Military Force passed just after the Sept. 11 attacks in 2001.

Feinstein's amendment would have inserted language excluding Americans into the detainee provisions of the Senate version of the National Defense Authorization Act.

The Senate later adopted, by a 99-1 vote, a compromise amendment clarifying that nothing in the NDAA is intended to alter the government's current legal authority to detain prisoners captured in the war on terror.

An earlier Feinstein amendment seeking to limit new detention-related rules to prisoners captured outside the U.S. also failed, on a 45-55 vote.

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December 01, 2011

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The Senate voted on Thursday, 45-55, not to exclude the United States from new legislative provisions making military custody and trial the default treatement for terrorism suspects.

Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) and other senators have objected to language in the National Defense Authorization Act that seeks to put newly-captured Al Qaeda operatives in military custody rather than that of the civilian courts and the Federal Bureau of Investigation. The provision does include the option of waiving military custody and sending a suspect to civilian court for national security reasons.

An effort to strip that language from the bill failed on Wednesday. In the Thursday vote, the Senate turned down an attempt by Feinstein to limit the new provisions to those captured outside the United States. The Senate is expected to vote later Thursday on another amendment by Feinstein that would explicitly exclude U.S. citizens from those potentially subject to indefinite law-of-war detention.

The White House has threatened a veto of the legislation, but there are doubts among many lawmakers about President Barack Obama's commitment to do so given past instances where the administration objected to detainee-related provisions but signed them as part of larger legislation.

To those American citizens thinking about helping Al Qaeda, please know what will come your way: death, detention, prosecution. If you are thinking about plotting with the enemy inside our country to do the rest of us harm, please understand what is coming your way: the full force of the law.

The law I am talking about is the law of armed conflict. You subject yourself to being held as an enemy of the people of the United States, interrogated about what you know and why you did what you did or planned to do, and you subject yourself to imprisonment and death. The reason you subject yourself to that regime is because your decision to turn on the rest of us and help a group of people who would destroy our way of life is not something we idly accept. It is not a common, everyday crime. It is a decision by you to commit an act of aggression against the rest of us.

The full transcript of the Senate debate is really worth a read. At a time when politicians often waste a lot of breath on utter nonsense, this exchange was a pretty high-brow discussion of constitutional law and the rights of Americans, particularly those captured in the United States and accused of ties to Al Qaeda.

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November 30, 2011

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Federal prosecutors are asking a judge to reject an effort by former Sen. John Edwards's defense team to call two former Federal Election Commission members as expert witnesses on campaign finance law at his upcoming criminal trial.

Edwards's defense wants to call Scott Thomas and Robert Lenhard to testify about the complexities of federal campaign finance regulations and about their implications for the prosecution Edwards is facing for allegedly accepting illegal, off-the-books donations to his 2008 presidential campaign by participating in a scheme to direct about $925,000 in reimbursements from two of his wealthy supporters to his mistress and a child she and Edwards had.

Both Thomas and Lenhard will testify, according to summaries prepared by the defense (posted here), that if Edwards had asked them whether such gifts consituted campaign donations under federal election law, they "would have given the opinion that [the payments] did not fall within the scope of those laws."

In a motion seeking to keep both men off the witness stand, prosecutors call the testimony "utterly irrelevant" and improper under federal legal precedent.

"It is a fundamental precept that expert testimony on the meaning and applicability of relevant law is inadmissible. This is because each trial court already has its own legal expert: the judge," prosecutors wrote in their motion filed Monday (posted here). "What Mr. Thomas or Mr. Lenhard would have said in 2007 and 2008 simply has no bearing whatsoever on what Edwards thought or knew at the time."

A defense spokesman had no comment on the motion to exclude Thomas and Lenhard from the trial, but a written response from the defense team is expected next week.

Ordinarily, expert witnesses are not permitted to opine on legal points, since the trial judge resolves legal questions. However, Edwards's case arguably presents a more complicated question about whether he should have or could have known in 2007 and 2008 that the alleged scheme to support his mistress would be considered a campaign contribution.

The defense also wants the two men to testify about a 2002 FEC opinion issued to Rep. Jim Moran (D-Va.) and holding that a $25,000 loan he accepted from a drug company lobbyist. "Testimony from retained experts about legislative history is of little to no use, even to the Court, much less a jury," prosecutors wrote.

Judge Catherine Eagles previously rejected a defense motion to dismiss the case based on its failure to state a clear violation of federal law. However, that leaves open the possibility that the facts the prosecution presents at trial might not withstand a similar motion at or after the trial.

Eagles has set a Dec. 16 hearing to take up motions in the case, including a new defense motion (posted here) seeking more information on the prosecution's theory of the case.

"Covert action that goes on for years doesn’t generally stay covert," Blair said during a forum Monday at the Aspen Institute's Washington office. "You need a way to make it something that is part of your overt policy. I think that the way that we know to do that is to make it a military operation and therefore, when you are going to be using drones over a long period of time, I would say you ought to give strong consideration to running those as military operations."

Blair said handing over the anti-terrorism operation to the military would make it easier for the U.S. government to discuss targeting procedures and precautions taken to avoid civilian casualties, sometimes referred to as collateral damage.

"Within the armed forces we have a set of procedures that are open, known for how you make decisions about when to use deadly force or not, levels of approval degrees of proof and so on and they are things that can be and should be openly put out. So yet another of the problems of trying to conduct long-term sustained covert operations is this secrecy," Blair said. "So, I argue strongly that covert action should be retained for relatively short duration operations which — no kidding — should not be talked about and should not be publicized. ... If something has been going for a long period of time, somebody else ought to do it, not intelligence agencies."

Blair's suggestion tracks with a recommendation of the widely praised 9/11 Commission that was essentially rejected by the government. Some of the pros and cons of consolidating such anti-terror operations in the military are laid out in this story I wrote for the 10th anniversary of Sept. 11.

Representatives of tje CIA, which does not publicly acknowledge its drone campaign targeting Al Qaeda operatives and other terrorist figures in Pakistan, did not respond to a request for comment on Blair's remarks.

However, a top Pentagon official did offer a rebuttal of sorts to Blair's proposal.

"Some people seem to have starkly rigid views on what some agencies and departments should be doing. Flexibility is key here, and the parameters of what they should be doing must be defined by two main factors: their legal authorities and their expertise," said the official, who commented on condition of anonymity. "The U.S. military and intelligence community both have tremendous skill sets and capabilities to bear on our nation's top security challenges, and we should use them all, as appropriate, to fight our enemies."

In his comments on drones, secrecy and who best should run such programs in the long term, Blair did not mention Pakistan directly. However, earlier in his remarks he argued that the U.S. and Pakistan have a "deformed" relationship. Blair said the U.S. needs to build a stronger connection with civilian authorities in Pakistan and stop reinforcing anti-democratic elements in the Pakistani military and intelligence apparatus.

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November 30, 2011

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On Tuesday, proponents of new congressional legislation seeking to make military custody and tribunals the default for most terrorism suspects beat back an attempt to put the provisions aside to allow further review.

The Senate on Tuesday rejected a bid to strip from the fiscal 2012 defense authorization bill provisions designed to codify the handling of detainees, putting the bill at risk of a presidential veto. The 37-61 vote against an amendment by Democrat Mark Udall of Colorado came after Senate Armed Services Committee Chairman Carl Levin (D-Mich.) defended the provisions as a fair bipartisan compromise worked out by committee members that has been hampered by "misstatements" about what it will do.

Defeat of the Udall amendment clears the way for a vote today to limit debate and eventual passage of the bill later this week. Still ahead is a tough conference with the House, where House Armed Services Committee Chairman Buck McKeon has insisted that provisions seeking military trials for detainees and limiting the military's recognition of gay relationships be in any final legislation.

The roll-call vote on the amendment to strip the language is posted here. The final recorded tally was 38-60. Hoskinson advises that Sen. Bob Menendez (D-N.J.) initially voted against the amendment deleting the detainee provisions, but later reversed his vote.

Support for stripping the legislation came almost entirely from Democrats, but GOP Sens. Rand Paul of Kentucky and Mark Kirk of Illinois joined the effort, with Paul warning that the language could lead to American citizens being detained indefinitely without trial. Democrats who voted to keep the detainee language largely came from the Senate Armed Services Committee.

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November 29, 2011

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Attorney General Eric Holder made an unusual plea Tuesday, urging a conservative news outlet to stop drumming up calls for his resignation.

"You guys need to — you need to stop this. It’s not an organic thing that’s just happening. You guys are behind it," Holder told a reporter for The Daily Caller who asked the attorney general to respond to what the online news organization has tallied as 52 calls for his resignation over the Fast and Furious scandal.

The Caller said its reporter introduced himself to Holder after an anti-counterfeiting event at the White House complex and asked for Holder's reaction to the resignation calls, which are linked to a Bureau of Alcohol, Tobacco, Firearms and Explosives-run gun-trafficking investigation that reportedly allowed more than 1,200 guns to flow to Mexico with little or no effort to track them. Most of the weapons are believed to have wound up with Mexican drug cartels.

Holder has called the so-called gunwalking tactic "unacceptable" and said it violated standing department policies. However, he has said he didn't know weapons were being intentionally sent across the border until ATF whistleblowers complained to Congress and the press.

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November 28, 2011

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Reviews the White House, Defense and State Departments conducted of the impact of the disclosure of thousands of U.S. diplomatic cables and military reports by WikiLeaks found no significant impact on national security, according to the defense lawyer representing an Army intelligence analyst accused of leaking the material.

Pvt. Bradley Manning is facing a preliminary hearing in Maryland next month that could lead to a full-scale court martial on charges that he aided the enemy, disclosed classified information and disobeyed Army regulations when he allegedly gave the data to WikiLeaks.

Top Obama administration officials decried the leaks and warned that they put the lives of U.S. troops at risk as well as those of Afghan civilians who may have cooperated with the U.S. and of dissidents in various countries who provided information to U.S. diplomats. However, Manning defense attorney David Coombs suggested in a legal filing it made public Monday that White House and Defense Department reviews found the WikiLeaks leaks to be of little significance.

A White House official whose name is redacted from the public version of the filing "was tasked to lead a comprehensive effort to review the alleged leaks in this case. He has completed a report detailing the rather benign nature of the leaks and the lack of any real damage to national security," the defense Request for Production of Evidence read. The review appears to be one ordered in December 2010 and conducted by former National Counterintelligence Center official Russell Travers.

The defense filing (posted here) makes similar claims about Defense and State reviews, asserting that the Defense Intelligence Agency review "concluded that all of the information allegedly leaked was either dated, represented low-level opinions, or was already commonly understood and known due to previous public disclosures" and that a State Department task force "concluded that the information leaked either represented low-level opinions or was already commonly known due to previous disclosures."

A White House spokesman had no comment on the filing. Defense and State department spokespeople also had no immediate comment.

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November 28, 2011

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Federal prosecutors are seeking a full mental evaluation of the man accused of attempting to assassinate President Barack Obama by opening fire at the White House earlier this month.

The prosecution made the formal request at a brief court hearing Monday even though a preliminary psychiatric assessment of the defendant, Oscar Ortega-Hernandez, found him competent to stand trial.

"The government received this morning the report of Dr. Elisabeth Teegarden concluding that the defendant is competent," prosecutors George Varghese and John Borchert wrote in a court filing (posted here). "Although the government does not dispute that conclusion, the government notes that it was only based on a 50-minute screening and submits that a full psychiatric or psychological screening ... is warranted, given the serious nature of the criminal charges pending against the defendant and the likelihood that mental health issues may arise in the course of these proceedings."

Ortega-Hernandez was arrested in western Pennsylvania Nov. 16 and subsequently charged with attempted assassination for repeatedly firing a Romanian-made AK-47-type assault weapon at the White House on the night of Nov. 11.

Magistrate Judge Alan Kay ordered the defense to respond the competency exam motion by Dec. 2, accoridng to U.S. Attorney's Office spokesman Bill Miller. Ortega-Hernandez, who was present at Monday's hearing, will continue to be held without bond, Miller said.

The FBI said it found a few days after the Nov. 11 shooting incident that several rounds hit the White House and one broke a glass window before lodging against a bulletproof window panel. However, they have not publicly reported any ballistic tests linking the bullets discovered with the assault weapon found the night of the shooting in an abandoned car that belonged to Ortega-Hernandez.

Associates say Ortega-Hernandez considered Obama to be the anti-Christ and made vague comments about taking action. As part of an unsuccessful effort to get on an Oprah Winfrey television show, he also made a rambling video about oil-related wars.

President Obama and first lady Michelle Obama were in California at the time of the shooting.

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November 23, 2011

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Two top Justice Department officials are planning to travel to Alabama next week to talk to business and community leaders about the federal government's lawsuit against that state over a law it passed seeking to crack down on illegal immigrants, a Justice Department statement said.

Tony West, who is overseeing the litigation as head of the department's Civil Division, and Tom Perez, who heads up the Civil Rights Division, are scheduled to brief journalists in Birmingham Monday morning in advance of two other, closed-door sessions there, officials said. The top federal prosecutor in northern Alabama, Joyce White Vance, will also take part in the discussions, according to the statement.

The community leaders' gathering "is largely a follow-up to a community meeting that we had when Mr. Perez came to town" last month, said Peggy Sanford, a spokeswoman for Vance. The federal officials do not plan to meet Monday with state officials, she said.

The Justice Department did not immediately respond to a request for more details on the local participants in Monday's meetings.

The lawsuits argue that the state laws are pre-empted by federal legislation and authority over immigration and foreign relations. They suggest that the laws could also lead to improper arrests, detention or racial profiling of U.S. citizens or legal residents. Perez's civil rights unit is not formally part of the legal team pursuing the suits, but it is gathering information on how the laws are being implemented, including the impact on Alabama schoolchildren of a provision requiring schools to determine whether students are in the country legally.

In a letter sent Wednesday to Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) at her request, Clapper doesn't dissect the National Defense Authorization Act's provisions in detail, but he says they threaten to gum up and complicate the process of gathering intelligence from terrorism suspects.

"Taken together, the various detention provisions, even with the proposed waivers, would introduce unnecessary rigidity at a time when our intelligence, military and law enforcement professionals are working more closely than ever to defend our nation effectively and quickly from terrorist attacks," Clapper wrote in the one-page letter (posted here.) "These limitations could deny our nation the ability to respond flexibly and appropriately to unfolding events—including the capture of terrorism suspects — and restrict a process that currently encourages intelligence collection through the preservation of all lawful avenues of detention and interrogation."

The bill was voted out of the committee unanimously, after an amendment by Sen. Mark Udall (D-Colo.) to strip the detainee provisions was defeated on a voice vote. Udall has offered a similar amendment on the Senate floor.

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November 22, 2011

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The Supreme Court needs to step in to head off a series of "extraordinary confrontations" between the federal government and state governments over immigration, the state of Arizona argues in a brief filed with the high court Tuesday.

Arizona's claim, in some legalese: "The alternative to plenary review is not the benign prospect of further percolation, but the proliferation of extraordinary confrontations between the federal government and other States."

"The question — whether States that bear a disproportionate burden of the costs of illegal immigration are powerless to use their own resources to enforce federal immigration standards without the express blessing of the federal executive — goes to the heart of our Nation’s system of dual sovereignty and cooperative federalism," Arizona argues in asking the court to take up that state's challenge to lower federal court rulings blocking much of the anti-illegal immigration law known as SB 1070.

Arizona's brief is posted here. You can read the Obama administration brief urging the Supreme Court not to take up the case here.

I wrote earlier this week on the potential political fallout of the Obama administration's legal assault on the Arizona, Alabama and South Carolina laws. We should know next month whether the justices will tackle the immigration issue this year.